Lead Opinion
On this appeal by the defendants Donovan and Mencher from convictions for murder in the first degree, the only issue of consequence is the admissibility of Donovan’s written confession. We are thus again confronted with the problem of achieving ‘ ‘ a balance between the competing interests of society in the protection of cherished individual rights * # * and in effective law enforcement and investigation of crime ”. (People v. Waterman, 9 N Y 2d 561, 564.)
James Beatty, a payroll guard, was shot to death during the course of a robbery committed in Queens County on May 10, 1961. Donovan was apprehended on the following day, his codefendant Mencher on May 12. Both were questioned at a police station and after a period of interrogation by police and prosecutor admitted their guilt orally and in writing. The
Since we have concluded that a confession obtained under the circumstances present here is inadmissible under New York law, we find it unnecessary to consider whether or not the Supreme Court of the United States would regard its use a violation of the defendant’s rights under the Federal Constitution. (Compare Crooker v. California, 357 U. S. 433, and Cicenia v. Lagay, 357 U. S. 504, with Culombe v. Connecticut, 367 U. S. 568 and Haynes v. Washington, 373 U. S. 503.)
It needs no extensive discussion to establish the high place which the privilege against self incrimination enjoys in our free society. The right of an accused to counsel as a procedural safeguard in our system of government enjoys equal eminence. (See, e.g., People v. Waterman, 9 N Y 2d 561, 565, supra; Cicenia v. Lagay, 357 U. S. 504, 509, supra; Crooker v. California, 357 U. S. 433, 439, supra.) In the case before us, these rights and privileges converge, for one of the most important protections which counsel can confer while his client is being detained by
We have held — and the United States Supreme Court has recognized (see Crooker v. California, 357 U. S. 433, 439-440, supra) — that the right to counsel extends to pretrial proceedings as well as to the trial itself. (See, e.g., People v. Waterman, 9 N Y 2d 561, supra; People v. Meyer, 11 N Y 2d 162; People v. Rodriguez, 11 N Y 2d 279, 284-285.) The need for a lawyer is surely as great then as at any other time; as Mr. Justice Black pointedly observed in the course of a dissent, “ The right to use counsel at the formal trial is a very hollow thing when, for all practical purposes, the conviction is already assured by pretrial examination.” (In re Groban, 352 U. S. 330, 344.)
It has, however, been urged that to permit a suspect, in cases such as the present, to confer with an- attorney before talking to the police would preclude effective police interrogation and would in many instances impair their ability to solve difficult cases. (See, e.g., Crooker v. California, 357 U. S. 433, 441, supra; Cicenia v. Lagay, 357 U. S. 504, 509, supra; People v. Escobedo, 28 Ill. 2d 41, 47-50.) Weighty though such considerations be, they do not permit us to ignore rights due the accused under our law. We gave thought to somewhat similar arguments in recent cases and rejected them as insufficient reason for disregarding individual rights when we stamped as impermissible police interrogation of an accused, in the absence of counsel, following his arraignment or indictment and held inadmissible the resulting confessions even though they were concededly uncoerced and voluntary. (See People v. Rodrigues, 11 N Y 2d 279, 28-285, supra; People v. Meyer, 11 N Y 2d 162,164, supra; People v. Waterman, 9 N Y 2d 561, supra; People v. Di Biasi, 7 NY 2d 544.)
We find these arguments equally unsubstantial in this case. Just as in those cases we condemned post-arraignment and post-indictment questioning ‘ ‘ without the protection afforded by the presence of counsel ” (People v. Waterman, 9 N Y 2d, at p. 565),
As a matter of fact, our decision in this ease was in a measure foreshadowed by People v. Noble (9 N Y 2d 571) which also involved a defendant who had been neither arraigned nor indicted. There, the defendant was questioned by an assistant district attorney shortly after his arrest. Ignoring the defendant’s query as to whether he was compelled to answer questions before consulting counsel, the prosecutor persisted in his interrogation and obtained a confession which was received in evidence against the defendant at the trial. The court reversed the conviction, holding that the statement should have been excluded. Judge Dye, speaking for himself and two other members of the court, declared that use of the statement 11 violated the fundamental fairness essential to the concept of justice ” (9NY 2d, atp. 574).
There is a like violation of fundamental fairness in the case now before us.
"We are reminded that, apart from the written confession, there was adequate, indeed' strong, evidence before the jury — such as proof of presence at the scene of the crime and accomplice testimony — to support the verdict of guilt against Donovan. That, however, does not justify an affirmance by this court, for, not knowing what credit and weight the jury gave to the written confession, we cannot say whether the jury would have returned a verdict of guilt if that improperly received statement had been excluded. “ It is for jurors, ’ ’ we wrote in People v. Mleczko (298 N. Y. 153,163), “ not judges of an appellate court such as ours, to decide the issue of guilt ” solely on the basis of evidence properly before them. (See, also, People v. Rosenfeld, 11 N Y 2d 290, 300; People v. Jackson, 7 N Y 2d 142,145; People v. Marendi, 213 N. Y. 600, 618-620.) It cannot be overemphasized
The admission in evidence of Donovan’s written confession requires reversal of his conviction and, since that confession, thus improperly before the jury, implicated his codefendant Mencher, there must also be a reversal of the latter’s conviction in the interests of justice. (See, e.g., People v. Rodriguez, 11 N Y 2d 279, 285, supra; People v. Waterman, 9 N Y 2d 561, 567, supra; People v. Noble, 9 N Y 2d 571, 575, supra; People v. Rudish, 294 N. Y. 500.)
The judgments of conviction should be reversed and a new trial ordered as to each defendant.
. Meneher’s claim that he had personally requested counsel was denied by the police.
. The view has been expressed that, despite the Crooher and Cicenia decisions to the contrary, recent Supreme Court eases presage a holding by that court that “ due process now requires the exclusion of any confession obtained in the absence of counsel when a defendant has requested that one be present during the questioning ” (Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 Neb. L. Rev. 483, 606).
Concurrence Opinion
(concurring). I concur in the views expressed by Judge Fuld.
The record reveals that the defendant Donovan’s confession was signed after the attorney who had been retained for him was denied permission to confer with his client.
The trial court charged as a matter of law that the police were guilty of violating the positive command of our Legislature to arraign without unreasonable delay a person taken into custody (Code Grim. Pro., § 165). Failure to do so constitutes a crime (Penal Law, § 1844). The. facts in this case show that the detaining officers were committing a crime against Donovan at the very same time that they were denying his attorney the right to confer with him. Here, the record indicates that the holding by the police of a “press conference ” was advanced as one of the reasons why the attorney (present and available) was denied permission to confer with Donovan. In fact, it is undisputed that the officer admitted that he would deny permission to any attorney seeking to confer with a client who was “under arrest” and “being questioned”.
Naturally there will be many who will argue that, in view of the facts disclosed in the record and the jury’s findings thereon, the verdict of “ guilty ” was more than justified and therefore should be affirmed.
The answer to that contention was written many years ago (1918) by Chief Judge Hiscock, who, in the case of People v. Esposito (224 N. Y. 370, 372), stated: “It was immaterial that one might think that the defendant was guilty of the highest crime of which he could be convicted and that there was no danger that such a conviction would result in meting out to him greater punishment than he deserved. Such thoughts as these, if they existed, had no place in the presence of that fundamental principle of our jurisprudence that a man shall not be punished for an act, however abhorrent and criminal it may seem to be, until he has been justly and fairly convicted.” Many other eminent jurists have expressed similar thoughts since that time.
In my opinion the judgment of conviction as to each defendant should be reversed and each case sent back for a new trial.
Dissenting Opinion
(dissenting). We dissent and vote to affirm. Absent a clear violation of due process, the rule concerning the admissibility of confessions has always been treated by this court according to principles of evidence, and not as a tool for the accomplishment of collateral purposes, such as control of police procedures. We should adhere to the rule that a confession given during illegal detention in the absence of counsel, found by the jury and this court to be voluntary, is admissible in evidence.
In a recent case in which the defendant had retained counsel before he was arrested, the Supreme Court of Illinois decided that the defendant was not deprived of due process through the refusal of the police to admit the lawyer and rejected a plea to bar the use of his confession. (People v. Escobedo, 28 Ill. 2d 41.) As stated by Mr. Justice Traynor in People v. Garner (57 Cal. 2d 135, 162-163): “ The perpetrator of a crime is
Cases such as People v. Waterman (9 N Y 2d 561) and People v. Meyer (11 N Y 2d 162), cited by the majority, simply found a denial of due process in the violation of the defendant’s clear constitutional right to counsel after the commencement of judicial proceedings against him.
On the evidence before us in this case, the conclusion is inescapable that the confession was the voluntary product of Donovan’s will. No member of this court suggests otherwise. Yet, contrary to universally recognized principles of evidence and the requirements of due process, the majority has held that Donovan’s confession may not be used in evidence against him. We cannot too strongly dissent from the majority’s view of this court’s function in these premises. The Legislature has determined the grounds for exclusion of confessions in section 395 of the Code of Criminal Procedure: ££ A confession of a
defendant, whether in the course of judicial proceeding or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless
In our view, this decision’s unwarranted departure from the clear public policy of New York is pointed up by our long line of cases holding that confessions given during a period of illegal detention are not automatically excluded, but are submitted to the jury under instructions from the court on voluntariness (e.g., People v. Mummiani, 258 N. Y. 394; People v. Elmore, 277 N. Y. 397). This rule has been adhered to despite the view of a minority of our Judges that we should adopt the contrary Federal rule of McNabb v. United States (318 U. S. 332) and Mallory v. United States (354 U. S. 449). (See People v. Lane, 10 N Y 2d 347, supra; People v. Everett, 10 N Y 2d 500.) The majority has nevertheless decided that we must reverse because of the special circumstance that, during the period of illegal detention and prior to defendant’s written confession
' The majority, faced with our cases rejecting the McNabbMallory rule as a whole, has simply divided it into two parts, the interrogation and the denial of access to the defendant, and singled out the denial of access as an independently operative factor. This, of course, is sheer sleight of mind. Our cases rejecting the Mallory rule have always recognized that the detention foreclosed outside legal advice. To quote from but one leading case: ‘ ‘ The police are guilty of oppression and neglect of duty when they willfully detain a prisoner without arraigning him before a magistrate within a reasonable time. (Code Grim. Pro., § 165.) The conclusion is inescapable that they do this for the purpose of subjecting him to an inquisition impossible thereafter. Until arraignment before a magistrate, he is held incommunicado, without the protection that comes from the advice of counsel or the encouragement derived from the presence of family or friends.” (People v. Mummiani, 258 N. Y. 394, 399-400, supra-, italics in original.) How can it be said, therefore, that this case presents any new element calling for a distinction or departure from our rule that these matters are to be submitted to the jury under proper instructions as to their possible bearing on voluntariness? If illegal detention does not require exclusion of a confession, how can denial of access, itself but a universally recognized incident of illegal detention, work an automatic exclusion? What magic is there in the one that is not present in the other ?
Defendant also relies upon People v. Noble (9 N Y 2d 571), in which we reversed a conviction because (in the opinion of a minority of the court) of a refusal by the District Attorney to fairly respond to the defendant’s inquiry concerning his right to counsel. The refusal, it was reasoned, indicated to the defendant that he had no choice but to speak to the authorities. Once this assumption was made the conclusion easily followed that the statement was not voluntary. It is apparent that even, that reasoning, resting as it did on the impression given the defendant by the District Attorney’s comments, does not touch
Apart from frustrating the historically recognized public interest in full presentation of evidence secured by means not violative of due process, this decision has implications for police investigation far beyond the limits of the facts presented. While here both the denial of access and the giving of the confession occurred during a period of illegal detention, the rule adopted applies as well to denial of access during a period of legal detention. For the court condemns questioning of an accused, absent counsel, after he or his attorney has requested that they be allowed to confer together. Traditionally, the writ of habeas corpus was the measure of counsel’s right to succor a client held by the police; and it did not lie if the suspect were legally detained. Henceforth, we take it, a mere request for admittance to a suspect legally held prior to arraignment will be more efficacious than the classic writ; not for release, of course, but for what matters most — the halting of all interrogation. The court, therefore, does not merely fashion a new remedy for a recognized right, but adds to the armory of rights to be enforced by the new remedy of exclusion.
In our opinion, therefore, the decisions of this court contrary to the McNabb-Mallory rule, so long as this court purports to adhere to them, foreclose any appeal based on the bare assertion that the refusal to admit a lawyer seeking an interview with an illegally detained suspect perforce renders a confession inadmissible.
It is all very well to speak of judicial integrity, cherished rights, fundamental imperatives of fair dealing, and potential police brutality, but it must be remembered that improper police interrogation can be brought to light before a jury of the defendant’s peers without a rule requiring that we exclude from evidence a confession even though voluntary. Is society so orderly, is crime so well under control, that we can indulge ourselves in the luxury of reversing convictions on grounds not touching the question of guilt or innocence or the voluntariness of a defendant’s statements? In the face of the statutory and common-law remedies available to one whose rights have been infringed by the police, and the statutory specification of the grounds for excluding confessions (Code Crim. Pro., § 395),
Donovan had made an oral confession, testified to by the police without objection, prior to the attorney’s arrival.
Dissenting Opinion
(dissenting). I concur in the dissent of Judge Burke, and mainly for the reasons which he has stated in his dissenting opinion. The test of admissibility of Donovan’s confession is' its voluntariness, as Judge Burke points out, rather than an absolute rule that in all instances one must have an attorney before being questioned where that occurs before criminal charges have been preferred. Questioning without a lawyer at that early stage may, depending upon the circumstances, have a bearing upon whether the confession of an accused is voluntary.
Here neither of these defendants requested to consult a lawyer. Even before the lawyer came to the police station without Donovan’s knowledge, who is alleged to have been retained by his family to represent him, Donovan had told the police where he had disposed of the fatal weapon and of $900 of the stolen money. Both were found exactly where he stated,
This case differs from People v. Noble (9 N Y 2d 571) in several respects, importantly in that Noble declined to talk when questioned by the police until he had consulted a lawyer, but was told by the police, in effect, that he had to answer their questions anyhow. Noble’s confession, under those circumstances, was held to have been involuntary. There is a large difference between that case and this, where Donovan never asked to consult a lawyer, and, unlike Noble, did not refuse to answer questions until after he had consulted a lawyer. Under the ruling on the present appeal, as it seems to me, a confession would be rendered inadmissible if any person with whom an accused had been associated, not necessarily near or distant relatives, were to show after the event that he had asked a lawyer to go to the police station and give advice if the lawyer were to testify that tie had gone there without being allowed to see the accused. Here, it so happens, it was not testified that the lawyer arrived there until after Donovan had told the police where he had put the lethal weapon and a substantial part of the stolen property. Under the ruling by the majority, if the lawyer had reached the police station first, not only would the oral as well as the subsequent written confession have had to have been excluded, but under the “ fruit of the poison tree ” doctrine adopted in this State by People v. Rodriguez (11 N Y 2d 279), it would not have been possible for the People to introduce into evidence either the lethal weapon or the loot, inasmuch as these were discovered only as a result of the confession.
The rule being laid down contains an additional unfairness, as indicated here by the distinction between Donovan and Mencher. Neither of these defendants asked to consult an attorney. It happened, however, that Donovan had a family or connections who testified that they procured one for him. Mencher had no such background support. Does this rule mean that an accused who has friends or connections is to be preferred,
I vote to affirm as to both defendants.
Dissenting Opinion
(dissenting). I concur with the opinion of Judge Burke. There is no proof whatever that the confession was involuntary except for the facts of illegal restraint and interrogation, and these matters were submitted to the jury. The rationale of the reversal on the grounds specified seems to me to involve nothing more or less than the proposition that a suspect may not be interrogated by the police without counsel present to advise him to keep silent. Such a policy should not be adopted only in the cases where the suspect, or his family, have means to employ counsel. It should apply to all suspects, and perhaps even to witnesses, whom the police seek to interrogate. This may lead, and it seems to me inevitably so, in all fairness, to the requirement of assigned counsel. Perhaps all confessions in criminal cases are suspect, perhaps their use should be prohibited, but such is not presently the law.
Opinion by Judge Fuld, in which Chief Judge Desmond and Judges Dye and O’Brien
Upon reargument: Judgments of conviction reversed, etc.
Designated pursuant to section 2 of article VI of the State Constitution in the place of Scileppi, J., disqualified.'